September 2, 2018

On the two year anniversary of the coup against Dilma Rousseff, on August 31, 2018, the Brazilian Supreme Electoral Court (TSE) disqualified Luiz Inácio Lula da Silva’s candidacy for the presidency. Like so many measures taken by Brasil’s unelected, elite and conservative judiciary since illegitimate president Michel Temer took office and rose their salaries by 41%, the TSE’s move literally broke the law. On August 17th, the UN Human Rights Commission issued a ruling that demanded that the Brazilian government allow Lula to run for the presidency. Brazilian Law MP 311, which was ratified by Congress in 2009, declares all rulings by the UN Human Rights Committee as legally binding in Brasil. Therefore, in barring Lula’s candidacy, the TSE broke both international and Brazilian law.

On the eve of TSE’s historic ruling of exception, I interviewed UN Human Rights Committee Vice President Sarah Cleveland about the repercussions of a possible lack of adherence to the UN order by the Brazilian government, for a web TV program on the Brazilian news channel Brasil 247. The following transcripts of our conversation have been edited for readability:

It seems like most of the cases reviewed by the UN Human Rights Committee are more related to things like torture, violence and things like that, but this case seems a little unique because its dealing with an ex-president of one of the largest nations in the world. What prompted you guys to look into Lula’s imprisonment?

A case comes in front of the Human Rights Committee the same way for all cases, which is that the country has to be a party to the Treaty that gives us the authority to hear the case and an individual has to submit a case to us claiming their rights under the international covenant on civil and political rights have been violated. You are right in that most of the cases we get involve issues related to torture or the death penalty but we also get claims involving arbitrary detention and unfair trial proceedings and those are the basis for Mr. Lula da Silva’s claim. His specific claim at present involves article 25 of the Covenant on Civil and Political Rights, which protects the right of all individuals in Brasil to participate in political proceedings and elections.

How long did you spend looking over the case and what were some of the deciding factors that made you decide to rule in the way that you did?
Mr. Lula da Silva, I should clarify, has a case pending before us. On top of that case he requested that the Committee issue what are called Interim Measures to protect his rights to political participation while his claim is pending, so the only thing that the Committee has decided right now is his request for interim measures. That involves his request that while he is in prison and while his appeals in the domestic courts in Brasil are pending, challenging the correctness of his conviction, that he should be allowed to stand for election as president and that he should have access to the media and to members of his political party in that regard. So that is the only thing that the Committee has addressed at present. Some time next year it will actually address the underlying merits of his claim.

When you announced this interim decision, the Brazilian Federal Government said that the UN Human Rights Committee only has an advisory role in relation to Brazil. But we know that Brasil is a signatory to the UN Second Optional Protocol [for Civil and Political Rights] which seemingly would give the UNHRC some kind of legal authority over the Brazilian government on human rights cases. What is your opinion of their assessment that they do not have to abide to this decision of yours?
You are exactly right and we disagree with them on this point because, as you said, Brasil is a party to the Second Optional Protocol which gives the Human Rights Committee the authority to hear claims by individuals that Brasil has violated their human rights under the Covenant. And Article 1 of that Treaty obligates Brasil to comply in good faith with the individual complaint procedure that the Treaty establishes. Brasil has committed to allow the Human Rights Committee to hear such cases and as part of that obligation it means that Brasil is required to participate in good faith in that process. So Brazil can’t take an action against Mr. Lula da Silva or another person who has a claim pending before the Committee that would irreparably harm that person’s rights or render their claim moot while the case is pending. Basically what the interim measures say is that there is a risk that Mr. Lula da Silva’s rights will be irreparably harmed while the case is pending before the Committee and therefore we have requested that Brazil take action to ensure that that doesn’t happen. We consider this request legally binding on Brasil as a matter of international law.

What will happen to the Brazilian government and what will happen to the election process if they simply decide to ignore you guys on this?
If they ignore us Mr. Lula da Silva still has his underlying case pending before us alleging violations of his rights and he could come back to us and request an opinion from the Committee that Brasil had violated its obligations under the Optional Protocol by ignoring our interim measures request. So Brazil will be in violation of its international treaty obligations if it ignores the interim measures request. We ourselves are not a sanctioning or enforcement body, we would not impose something like economic sanctions on Brasil. But depending on Brazilian domestic law Mr. Lula da Silva might be able to bring a claim in the domestic courts that his rights under the treaty have been violated and, as I said, Brasil would be in violation of its international legal obligations with all the implications that follow from that.

What do you think would happen to the reputation of Brazil on the world stage if it just started ignoring its responsibilities to the UN?
It is a very dangerous position for any nation that wants to be considered as a country that complies with human rights and the international rule of law. Countries like Brasil ratify human rights treaties because they want to be considered human rights complaint. I would say in particular with respect to interim measures issued by the Human Rights Committee, countries in general do comply with those. We issue interim measures asking countries not to execute people who are facing the death penalty, not to deport people to situations where they may face torture and countries generally do comply with them, particularly countries like Brasil that care about their human rights reputation.

Would there be any chance that the UNHRC could invalidate the elections if they are held without granting Lula the right to run?
We wouldn’t invalidate an election. We could conclude, if the claim were brought before us, that the process by which an election was conducted violated an individual’s rights under the Covenant. We have had cases like that before in which election procedures were not consistent with Article 25 of the Covenant. So that would be the way in which we would raise questions about the domestic legal process for the election. Here the specific problem is that Mr. Lula da Silva argues that he cannot be denied the ability to stand for election if he has been wrongfully convicted. And the Human Rights Committee did recently have such a case involving the former President of the Maldives who had been, in our view, wrongfully convicted and therefore wrongfully denied the ability to participate in the election.

And what happened in that situation?
We recently issued the decision. It just happened this year so the Maldives have 6 months to respond to us on how they are implementing it and we have not heard back yet.

In the case of your decision regarding Lula, people have complained, for example, that in Brasil there are mass murderers and drug traffickers who give television interviews from behind bars. Lula has been barred of all contact with journalists. Is this something that factored into your decision in the ruling that this represents a violation of his rights to run for office?
Yes, exactly. One of his claims was that he was being given extremely limited access – only to his family. And therefore one of the requests that the Committee made to Brasil was that he must be given appropriate access that would allow him to stand for election while he is in prison, including access to the media and access to his political party. Now he also asked for us to request that he be released from prison in order to participate in the election and we did not make that request.

Why not?
Because he has been convicted in a domestic court in Brasil and he has a challenge to that conviction pending. The interim measures request that he submitted to us did not attempt to or seek a determination from the Committee regarding his guilt or innocence and that is not something that we would be in a position to assess at this stage anyway so, in order to protect his political rights – which was a specific request before us – we simply asked that he be given access to his party and to the media in prison. I should add that the other element to the request was that he should have this access and he should be allowed to stand for election as a presidential candidate while his challenge to his conviction was pending in the domestic courts. In other words he has appeals pending that have not been addressed and until those appeals are addressed through fair judicial procedures the Committee requested that he should have the right to stand as a presidential candidate.

I know that there are probably a lot of things that you can’t speak publicly about regarding Lula’s case because it is ongoing. But what are some of the factors that prompted you to start this investigation. I know that it was a provisional ruling that he has to be allowed to run for office, but the general case that you are looking into regarding Lula’s imprisonment. What were some of the factors that prompted you to decide to review it?

We don’t make the decision. An individual submits a case to us and then we have a procedure by which we register the case if it states a potential violation of the Covenant. We then provide the claim and the information that the individual has submitted to the state party for their response. Then we receive a response from the individual and then a Committee will actually decide the underlying merits of the case. That process is underway but that process is initiated by the claimant – in this case by Mr. Lula da Silva – and not by us. We don’t go out looking around the world for cases, so he brought the case to us and he brought the case for interim measures to us. A request for interim measures is always an urgent procedure because the basic claim is that there is a risk of irreparable harm, in this case pending the October elections in Brasil and so that was the reason that the Committee took this action at this time.

What kind of time frame to you have for the final ruling?
We are expecting to decide on the underlying merits of his claim some time next year.

It does not look like the Brazilian government is very interested in following this decision. If they don’t respect the decision, what would happen, hypothetically speaking, if next year you rule that Lula did not receive a fair trial and that he should be immediately released from Prison. How would this effect the election results in an election in which Lula was not allowed to run?
That is the risk of irreparable harm and that is why the Committee has taken this action now and as I said if Brasil doesn’t comply then it is in violation of its international legal obligations. If the Committee ultimately found that Brasil had violated Lula’s rights and it was something that had been done in the past and could not be undone, then the Committee would ask Brasil to provide Mr. Lula da Silva with reparations including compensation and ensuring his ability to stand for election as a candidate in the future and also to take steps to ensure that violations like this did not occur in the future as a general matter. I am speculating now because I don’t know what would happen and I don’t know exactly what the Committee would say, obviously, but these are the types of requests that we make to states in this kind of situation and this is essentially what we said to the Maldives recently.

 

Brasilwire